[EL] authority of Alabama legislature to cancel U.S. Senate special election

[Rick Hasen]

Over on Twitter, Hugh Hewitt makes a pitch for Alabama to cancel the special election and allow Sen. Strange to complete the term:

https://twitter.com/hughhewitt/status/929415700896198657

(
If @GovKayIvey<https://twitter.com/GovKayIvey> and legislature agreed to cancel special election and provide that appointed senator serves until end of term, tough to see how federal ct overturns law when the Moore/Jones objections arrive.)

I responded that I doubted that a court would agree it is constitutional to cancel the election, and Hugh asked for authority in which a court has ordered an election to be conducted that a state legislature has cancelled.

I cannot find any direct historical comparisons, but it seems to me that cancelling an election already in progress (military and overseas voters are already voting under UOCAVA) would raise serious equal protection/due process problem.  It also seems that Roe v. Alabama (which I write about in the Democracy Canon) says that states cannot change election procedures already in progress (except to cure a constitutional violation).

In the special context of the 17th amendment, it provides that for special election to fill Senate vacancies, “That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.”

The legislature has already directed how the election should take place, and so unless one adopts the argument (which was made by some during Bush v. Gore) that the state legislature has the plenary power to change the rules in the middle of an election/recount, the legislature has already directed how the election should take place.

What am I missing?  Do others disagree?

Thanks.


--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
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